McJohn, Stephen | November 1, 2018

The Supreme Court loosened the grip of patentees on their products, holding that contractual restrictions on patented products are ineffective to preserve patent rights. The Court also loosened the grip of the Eastern District of Texas on patent cases, announcing a narrower standard that will send more cases to Delaware. The Federal Circuit cases piled up on applying the Alice standard to filter nonpatentable abstract ideas from patentable inventions. Meanwhile, even as the constitutionality of the Patent Trial and Appeal Board (PTAB) pends before the Supreme Court, hundreds of PTAB decisions on the validity of patents move onward to the Federal Circuit. Other notable patent cases concerned sovereign immunity (such as transferring patents to avoid PTAB proceedings), the doctrine of assignor estoppel, the scope of prior art, and patent rights to the gene-editing tool CRISPR-Cas9. In trademark, the Court held the bar against disparaging marks was an invalid restraint on freedom of expression. Lower courts addressed a number of issues in the same area, such as the right to use marks in titles of work and other expressive purposes. Courts also addressed whether such terms as “google,” “tequila,” and “universal” have become generic. In copyright, the Supreme Court gave some guidance on the line between copyrightable expression and nonprotected functional matter. Other notable cases addressed the copyrightability of standards and the meaning of “noncommercial” in open source licenses, along with fair use in new settings. In trade secrets, courts looked at such key issues as the scope of the Computer Fraud and Abuse Act, the intersection between trade secret and international trade, and protection for databases.